Case-1-Thoppil Agencies v. Assistant Commissioner of Commercial Taxes-[2020] 120 taxmann.com 18-HIGH COURT OF KARNATAKA
Subject-Issue of Show Cause Notice without on the basis of documents which were never provided to the petitioner and nor opportunity of cross examination given
Held-Having heard both sides and perused the material on record, I am of the considered opinion that without going into the legal and factual aspects of the matter, it can be seen from the impugned order at Annexure-E that several documents and circumstances which were neither referred to nor enumerated in the show cause notice at Annexure-B4 have been relied upon by the respondent No. 1 in the impugned order. It is not in dispute that no opportunity of personal hearing was given to the petitioner before passing the impugned order. The material on record also indicates that several documents relied upon by the respondent No. 1 in the impugned order at Annexure-E were neither brought to the notice of the petitioner nor was he permitted to cross-examine the witnesses with reference to the said documents. Further, no opportunity to produce additional documents was given to the petitioner.
6. The aforesaid facts and circumstances will indicate that in the absence of sufficient and reasonable opportunity being granted in favour of the petitioner, the impugned order is clearly in contravention of principles of natural justice and that the same deserves to be set aside on this ground alone and the matter deserves to be remitted back to the respondent No. 1 to consider and dispose off the same afresh in accordance with law after providing sufficient and reasonable opportunity to the petitioner to put forth his contentions and documents and to hear the petitioner before passing suitable orders.
Emphasis Supplied
Case-2-ABCO Trades (P.) Ltd. v. Assistant State Tax Officer-[2020] 120 taxmann.com 180-High Court of Kerala
Subject-Error in mentioning the registration status of the Recipient and mistake in mentioning the tax applicable on challan as goods were meant for stock transfer
Held-Learned counsel for the petitioner would submit that although the e-way bill showed the consignee as an unregistered person, the invoice that accompanied the transportation clearly referred to the GSTIN of the consignee and hence, the mere mention of the consignee as an unregistered person in the e-way bill cannot be of any significance. Secondly, it is stated that the mention of the tax applicable in the delivery challan was by mistake for it is evident that when the goods are stock transferred and not sold, there need not be a payment of tax at all.
Taking note of the said submission, I find that the reasons shown in Ext.P5(c) for detaining the consignment are not sufficient to attract the provisions of section 129 of the GST Act. The detention in the instant case cannot, therefore, be seen as justified. I therefore allow the writ petition by directing the 1st respondent to immediately release the goods and the vehicle covered by Ext.P5(c) detention notice, on the petitioner producing a copy of this judgment before the 1st respondent. The Government Pleader shall also communicate the gist of this judgment to the 1st respondent so as to enable the petitioner to effect an immediate clearance of the goods and the vehicle. The petitioner shall produce a copy of this judgment together with a copy of the writ petition before the 1st respondent for further action.
Emphasis Supplied
Case-3-Ahnas Mohammed v. Assistant State Tax Officer-[2020] 119 taxmann.com 115-High Court of Kerala
Subject-Order passed before the date of hearing
4. Today when the matter was taken up for consideration, Dr.Thushara James, the learned Government Pleader appearing for the respondents would submit that she has not been specifically furnished instructions as to whether or not the petitioner had been personally heard by the 1st respondent before the issuance of the impugned Ext.P-7 order dated 13-1-2020, but that the impugned proceedings at Ext.P-7 would broadly indicate that the petitioner was not heard, as in cases of this nature, where the party is heard, the said factum would find a place in the impugned proceedings.In this case, it is to be noted that none other than the 1st respondent has issued Ext.P-5(b) notice dated 6-1-2020 directing that the petitioner should appear for personal hearing on 14-1-2020. For reasons only known to the 1st respondent, he has chosen to pass orders as per Ext.P-7 on 13-1-2020, without affording any opportunity of being heard to the petitioner and even before the date fixed by him for the petitioner’s personal hearing. It is indeed very startling that in a case of this nature, a responsible taxation officer like the 1st respondent violates the elementary cannons of fairness and natural justice by not even affording a reasonable opportunity of being heard to the affected party. It is all the more surprising as none other than the 1st respondent has issued Ext.P-5(b) notice dated 6-1-20020 directing the petitioner to attend for a personally hearing in the matter on 14-1-2020. Even now, the 1st respondent has not chosen to give specific factual instructions to the learned Government Pleader as to whether he had afforded reasonable opportunity of being heard to the petitioner. The abovesaid facts asserted by the petitioner have not been controverted by the respondents. Therefore, it is only to be held that the 1st respondent has not granted personal hearing to the petitioner before taking a decision as per Ext.P-7 order dated 13-1-2020, even though he had invited the petitioner for a personal hearing to be conducted on 14-1-2020 as per Ext.P-5(d) notice dated 6-1-2020.Hence it is only to be held that the impugned order at Ext.P-7 is illegal and ultra vires and the same has been issued in patent violation of the elementary cannons of natural justice and fairness and the said order is liable to be quashed. It is all the more so, Ext.P-7 order has been rendered on 13-1-2020 by the 1st respondent at a point of time, the previous writ proceedings as per W.P.(C).No. 674/2020 was pending on the file of this Court, which fact was also very much known to the 1st respondent. Accordingly, it is so ordered and declared. Consequently, it is ordered that Ext.P-7 order will stand set aside and the matter in relation to the proposed penalty thereto shall stand remitted to the 1st respondent to take a decision afresh.
The petitioner will immediately furnish his written submission in the matter before the 1st respondent along with a certified copy of this judgment and this may be done within a period of 10 days from the date of receipt of a certified copy of this judgment. Thereafter the 1st respondent shall issue notice of hearing to the petitioner by registered post with acknowledgement due and thereafter the 1st respondent will grant reasonable opportunity of personal hearing to the petitioner through his authorised representative/counsel, if any and then will take a considered decision thereon in accordance with law.
5. Before parting with this case, this Court would only venture to observe that in cases of this nature, elementary Cannons of natural justice and fairness would require that the party should be personally heard by the decision maker either in person or through authorised representative/counsel, if any, and thereafter a considered decision is taken thereon, instead of driving the affected party like the present petitioner having to approach this Court and then litigate the matter on account of violation of natural justice. It is trite and it is too elementary to require the citation of any judicial authority that where the decision taken by the decision maker would inflict adverse civil consequence on the affected party, then the elementary principles of reasonableness, fairness and natural justice would require that the affected party is heard by the decision maker before the latter renders decision thereon. The 2nd respondent Commissioner or the Head of the Department concerned may ensure that necessary instructions are given to the officials concerned in the Department so that unnecessary litigations of this nature could be easily avoided. The affected party cannot be blamed for approaching the Court for ventilating his grievances and if elementary principles of natural justice and fairness are adhered to by the decision manner, the litigations of this nature could be substantially reduced.
Emphasis Supplied
Case-4-Same Deutzfahr India (P) Ltd. v. St of Telangana
Subject-Levy of Penalty Under Section 129 not tenable if the movement of goods is for transaction other Supply of Goods
Observation-According to the petitioner, there was only a stock transfer from it’s factory in Ranipet in the the State of Tamil Nadu to its Depot at Bongulur village, Ibrahimpatnam Mandal in the State of Telangana, that there is no element of sale of goods or services in it, and mere transfer of goods inter-State would not attract the provisions of the Act because there is no taxable event in it.
Held-We do not accept the plea of the respondents that at the time of detention of the goods, the transporter/driver of vehicle did not tell them that at Bongulur village, Ibrahimpatnam Mandal, the petitioner has an additional place of business. No reasonable person when asked to pay GST and penalty of more than Rs.6 lakhs, would keep quiet and meekly pay up without bringing the said facts to the notice of the detaining authority.
14. Once it is clear that petitioner has additional place of business in the State of Telangana in Bongulur village, Ibrahimpatnam Mandal and the goods were being transported to that address from its Corporate office at Ranipet, Tamil Nadu State, it cannot be said that the petitioner was indulging in any illegal activity when the tax invoice shows that the supplier is the petitioner’s Corporate office in Ranipet, Tamil Nadu State and that it was shipped to its Depot in Bongulur village in Ibrahimpatnam Mandal.
15. There was no occasion for the 3rd respondent to collect tax and penalty from the petitioner on the pretext that there is illegality in the transport of goods as it would merely amount to stock transfer and there is no element of sale of goods or services in it.
17. Accordingly, the Writ Petition is allowed; and respondents are directed to refund within four (04) weeks the sum of Rs.6,70,448/- collected towards CGST and State GST and penalty from the petitioner with interest @ 9% p.a. from 05-03-2020 till date of payment to petitioner by the respondents. The 3rd respondent shall also pay costs of Rs.1,500/- (Rupees One Thousand and Five Hundred only) to the petitioner.
Emphasis Supplied
